United States - National

While the desire to protect intellectual property remains constant, the practice of IP law is in a constant state of flux in the United States. For example, although the test for distinguishing patents that claim abstract ideas from patents that are practical applications of abstract ideas has been refined post Alice v CLS Bank, a great deal of uncertainty remains surrounding the question of eligible subject matter; as a result, it is almost impossible to draw a straight line from recent court decisions to what the outcome may be in the next case. This – together with the growing popularity of the America Invents Act’s post-grant review mechanisms – has contributed to a significant decline in the patent litigation market. In addition, the Supreme Court recently granted a petition from TC Heartland which is looking to put an end to forum shopping in patent cases; the outcome of this may also put a further dent in litigation filings. However, at least anecdotally, the market for high-stakes competitor-on-competitor suits appears to be healthy, while Section 337 filings at the International Trade Commission are also picking up.